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The idea behind this blog is to collect information on the death penalty in India and make it accessible. We are trying our best to put the latest information on the people who are currently on death row, the status of their cases, their mercy petitions and also the information on any death sentence across the country. Please feel free to write us and give us your suggestions and comments and also any information you have come across regarding the death penalty in India. Our email id is abolishdeathpenaltyindia@gmail.com The blog is currently managed by Grace Pelly, Lara Jesani, Nitu Sanadhya, Rebecca Gonsalvez, Reena Mary George and Vijay Hiremath.
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Sunday, April 21, 2013

Is 14 years imprisonment an alternative to death penalty? SC asks

Dhananjay Mahapatra,TNN | Apr 20, 2013
NEW DELHI: Is life sentence, which generally translates to 14 years in prison, a good alternative to death penalty in heinous and gruesome murders which fall just short of being categorized 'rarest of rare" to invite the extreme punishment?

This question from the Supreme Court related to those cases where trial courts impose death penalty but higher courts, after scrutinizing the evidence afresh, find that the case falls just short of being bracketed under 'rarest of rare' category not warranting award of capital punishment.

A bench of Justices P Sathasivam and M Y Eqbal was confronted with this question in the case where one Sahib Hussain was found guilty of murdering five persons and was awarded death penalty by a Rajasthan court. The high court commuted the death penalty to life imprisonment with a rider that it would not be less than 20 years in prison.

Justice Sathasivam, writing the judgment for the bench, upheld the 20-year sentence but found that in a recent judgment (Sangeet vs Haryana), the SC had criticized award of sentences ranging between 20 years and 35 years in gruesome murder cases which fell outside the purview of 'rarest of rare' tag by a whisker.

In that judgment, the apex court had said it was impermissible for courts to limit the power of the government to grant parole or remission to convicts sentenced to life. In most cases of life imprisonment, convicts, on showing good conduct, get entitled to remission and are let out after spending 14 years in jail.

The bench of Justices Sathasivam and Eqbal said the judgment criticizing higher courts for awarding sentences ranging between 20 years and 35 years as an alternative to death penalty was unwarranted, given the fact that state governments had granted remission without adequate reasons or even on flimsy grounds.

"It is clear that since more than a decade, in many cases, whenever death sentence has been commuted to life imprisonment where the offence alleged is serious in nature, while awarding life imprisonment, this court reiterated minimum years of imprisonment of 20 years or 25 years or 30 years or 35 years, mentioning thereby, if the appropriate government wants to give remission, the same has to be considered only after the expiry of the said period," the bench said.

The bench supported its reasoning with the Swami Shradhananda judgment, in which the apex court in 2008 had said, "When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the high court, this court may find that the case just falls short of the rarest of rare category and may feel somewhat reluctant in endorsing the death sentence.

"But at the same time, having regard to the nature of the crime, the court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years and would be grossly inadequate."

It had further said, "What then should the court do? If the court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes of not more than 14 years, and the other death, the court may feel tempted to find itself nudged into endorsing the death penalty. Such a course would be disastrous.

"A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, that is the vast hiatus between 14 years' imprisonment and death. It needs to be emphasized that the court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all." The court had ordered that Shradhananda would not be released from jail.

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The Death Penalty Scenario in India

The Indian government is committed to the retention of the death penalty. In December 2007 India was among the minority of countries who voted at the United Nations General Assembly against a moratorium on executions.

India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. It is mandatory for second convictions for drug trafficking offences.

Death sentences are carried out by hanging. In 1983 the Supreme Court upheld the constitutionality of this method, stating that it: “involves no barbarity, torture or degradation.”

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement.

Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

There is very little information on the number of people sentenced to death in India. According to the National Crime Records Bureau, 1,455 convicts were awarded the death penalty during the period 2001-2011. The actual figure of sentences originally awarded is much higher considering the death sentences of 4,321 convicts came to be commuted to life imprisonment in the said period.

That the imposition of death penalty is ineffective in controlling crime rate or deterring crimes, is widely known and even accepted on the basis of exhaustive research and statistics. Inherently there are serious flaws in capital sentencing. DNA evidence is not used, death sentences can be given by a majority rather than a unanimous bench and many convictions for death sentences are based entirely on circumstantial evidence. This coupled with a faulty criminal law enforcement system and admittedly high corruption levels in the police force investigating the crime, increases the chances of false convictions. In such a scenario, the correctness of conviction resulting in the ultimate sentence of capital punishment relies on a system of trial and error.

Also, the handing over of the death penalty is dependent on various variable factors such as existing biases amongst law enforcers, social biases, media reports and public outcry, social and financial status of the accused, quality of legal representation and last but not the least, the bent of mind of the judges.

During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Paradoxically, whilst the “rarest of the rare” doctrine has been used to limit and restrict the use of the mandatory death penalty elsewhere in the world, it has often had the opposite effect in India. It has enabled judges to justify imposing sentences of death in an arbitrary manner, reinforcing the deeply flawed character of capital punishment in India today.

Recently in April 2013, in a petition filed by Devender Pal Singh Bhullar in the Supreme Court, delay in deciding his clemency plea was ruled out as a ground to commute his death sentence to life imprisonment. Devender Pal Singh Bhullar had approached the Supreme Court in 2011 after the President rejected his mercy petition after 8 years. The said judgment may have a far reaching effect on similar cases where mercy petitions have remained pending with the President for inordinate periods of time.